House 93, LLC v Lipton

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House 93, LLC v Lipton 2021 NY Slip Op 30083(U) January 11, 2021 Supreme Court, New York County Docket Number: 161159/2018 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 01/12/2021 01:05 PM NYSCEF DOC. NO. 240 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice -------------------------------------------------"'----------------------X HOUSE 93, LLC, INDEX NO. MOTION DATE Petitioner, MOTION SEQ. NO. 161159/2018 09/18/2020 -~0~04_:_;::_;00::..::5:..;,..._ -vHEIDI LIP~ON, DECISION + ORDER ON MOTION Respondent. ------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132,212,213,214,215,216,231,232,233,234,235,236,237, 238 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT The following e-filed documents, listed by NYSCEF document number (Motion 005) 135, 136, 137, 138, 139, 140, 141, 142, 143, 144. 145, 146, 147, 148, 149, 150, 151, 152, 153, 154, 155, 156,,160, 161, 162, 163, 164, 165, 166, 167, 168, 169, 170, 171, 172, 173, 174, 175, 176, 177, 178, 179, 180, 181, 182, 183, 184, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195, 196, 197, 198, 199,200,201,202,203,204,205, 206,207,208,209,210,211,217,218,219,220,221,222,223,224,225,226,227,228. 229,230 EXTEND - TIME were read on this motion to/for ORDER Upon the foregoing documents, it is ORDERED that the motion of petitioner to confirm the Report of Judicial Hearing Officer Alice Schlesinger filed on January 6, 2020 {motion sequence number 004) is GRANTED; and it is further ORDERED that the cross motion of respondent to disapprove such Report is DENIED; and it is further Page 1of5 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 1 of 5 [*FILED: 2] NEW YORK COUNTY CLERK 01/12/2021 01:05 PM NYSCEF DOC. NO. 240 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 ORDERED that that the motion of petitioner to extend the term of the license issued on June 25, 2019 (motion sequence number 005) is DENIED as moot; and it is further ORDERED that the application of petitioner for sanctions against respondent and respondent's cross motion for sanctions against petitioner are DENIED; and it is further ORDERED that this matter having come on before this court on September 18, 2020, on the cross motion of the respondent for an award petitioner Anthony and, damages having John represen~ed of been Novello, for alleged property damage, represented Esq., and in connection the respondent and the therewith by having ·been in connection therewith by, Matthew C. Kesten, Esq., pursuant to CPLR 4317, the court having on its own motion determined to consider the appointment of a referee to determine as follows, and it appearing to the court that a reference to determine is proper and appropriate pursuant to CPLR 4317 (b), and involves an issue of damages separately triable and not requiring a trial by jury, it is now hereby ORDERED that a Judicial Hearing Officer • ("JHOn) or Special Referee shall be designated to determine the following individual issues of fact, which are hereby submitted to the JHO/Special Referee for such purpose: the issue of the amount of damages, if any, sustained by the Adjacent Property owned by respondent caused by the construction Page 2of 5 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 01/12/2021 01:05 PM NYSCEF DOC. NO. 240 activity INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 of petitioner under the Property Proceedings & Actions Law license § granted under Real 881 on June 25, 2019; and it is further ORDERED that the powers of the JHO/Special Referee shall not be limited beyond the limitations set forth in the CPLR unless otherwise indicated; and it is further ORDERED that this matter is hereby referred to the Special Referee Clerk (Room 119, r 646-386-3028 or spr~f@nycourts.gov) for placement at the earliest possible date upon the calendar of the Special Re rees Part {Part SRP), which, in accordance with the Rules of that .Part {which are posted on the website of this court at www. nycourts. gov I supctmanh at the "References" link ) , assign this matter at the initial appearance to an JHO/Special Referee to determine as specified above; shall available and it is further ORDERED that counsel shall immediately consult one another and counsel for respondent shall, within 15 days from the date of this Order, submit to the Special Referee Clerk by fax 9186) or e-mail "References" link an on information called for Information the court / s Sheet website) therein and that, thereafter, the Special Re (accessible containing as soon as (212-401at the all the practical ree Clerk shall advise counsel for the parties of the date fixed for the appearance of the ma~ter upon the calendar of the Special Referees Part; and it is further Page 3of 5 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. Motion No. 004 005 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 01/12/2021 01:05 PM NYSCEF DOC. NO. 240 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 ORDERED that the parties shall appear for the reference hearing, including with all witnesses and evidence they seek to present, and shall be ready to proceed with the hearing, on the date fixed by the Special Referee Clerk for the initial appearance in the Special Referees Part, subject only to any adjournment that may be authorized by the Special Referees Part in accordance with the Rules of that Part; and it is further ORDERED that, except as otherwise directed by the assigned JHO/Special Referee for good cause shown, the trial of the issue(s) specified above shall proceed from day to day until completion and counsel must arrange their schedules and those of their witnesses accordingly. DECISION A review of the transcript of the undertaking hearing reveals that the Judicial Hearing Officer did not discount the amount of the undertaking to be posted for attorneys' fees incurred by respondent as the result of the license based upon respondent's failure to reach a compromise. Instead, the '\ Referee made clear that she attributed much of the fees assessed by respondent's prior counsel to legal services that arose only due to respondent's lack of good faith and reasonableness in contesting the petition for a reasonable and minimal trespass upon her property. Thus, this court finds the undertaking in the amount of $18,000 for attorneys' fees is reasonable, 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI B. u.-•1-... tJ" nnA nns;, 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 01/12/2021 01:05 PM NYSCEF DOC. NO. 240 INDEX NO. 161159/2018 RECEIVED NYSCEF: 01/12/2021 especially in light of the evidence that respondent has already paid $20,000 in attorneys' fees to petitioner for legal services incurred prior to the commencement of the proceeding at bar. This court finds no grounds for awarding petitioner sanctions against respondent, as respondent had every right to defend against petitioner's application for an extension of the term of the license. Likewise, this court finds that sanctions against petitioner are unwarranted, as the work was only completed one month after petitioner filed its motion for an extension. Neither side presents evidence that resolves the question whether the Adjacent Property suffered any damages caused by the construction activities of petitioner under the license. As the issue implicates questions of credibility, it must be resolved at an evidentiary hearing. 1/11/2021 DATE CHECK ONE: r CASE DISPOSED GRANTED D o BRAA.'JAMES~s~. NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 161159/2018 HOUSE 93, LLC vs. LIPTON, HEIDI 8. 5 of 5 D 0 OTHER REFERENCE Page 5 of 5

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